Opinions

Hanson v. NDDOT 2022 ND 135
Docket No.: 20220071
Filing Date: 7/7/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: A Department of Transportation hearing officer’s decision to admit or exclude evidence will be reversed on appeal only if the hearing officer abused her discretion.

Hearing exhibit provided documentary evidence establishing an Intoxilyzer 8000 device was installed by a field inspector.

Hanson v. NDDOT 2022 ND 135
Docket No.: 20220071
Filing Date: 7/7/2022
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

State v. Piker 2022 ND 134
Docket No.: 20210344
Filing Date: 7/7/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: District courts “shall take into account the reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action” in determining restitution amounts.

Self-defense operates as a bar to conviction rather than to reduce or eliminate restitution.

State v. Piker 2022 ND 134
Docket No.: 20210344
Filing Date: 7/7/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Interest of T.E. (CONFIDENTIAL) 2022 ND 133
Docket No.: 20220171
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: A district court’s orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.E. (CONFIDENTIAL) 2022 ND 133
Docket No.: 20220171
Filing Date: 7/7/2022
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

State v. Dearinger 2022 ND 132
Docket No.: 20210295
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: The probable cause showing required at a preliminary hearing is a minimal burden of proof.

The felony enhancement of hindering law enforcement under N.D.C.C. § 12.1-08-03(2)(a) requires the State to establish probable cause to believe a person knew of conduct of another and the known conduct constituted a class AA, A or B felony.

State v. Dearinger 2022 ND 132
Docket No.: 20210295
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Interest of A.P. (CONFIDENTIAL) (consolidated w/ 20220130 & 20220131) 2022 ND 131
Docket No.: 20220129
Filing Date: 6/23/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of A.P. (CONFIDENTIAL) (consolidated w/ 20220130 & 20220131) 2022 ND 131
Docket No.: 20220129
Filing Date: 6/23/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

State v. Johansen 2022 ND 130
Docket No.: 20220046
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered after the trial court found the defendant guilty of disorderly conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Johansen 2022 ND 130
Docket No.: 20220046
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

State v. Taylor 2022 ND 129
Docket No.: 20220038
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Except for a clerical error, an amended criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4), and remanded to correct the error.

State v. Taylor 2022 ND 129
Docket No.: 20220038
Filing Date: 6/23/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

State v. Pulkrabek 2022 ND 128
Docket No.: 20210332
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: When the defendant does not raise a public challenge to any of the violations he asserts on appeal, this Court concludes any potential error should be treated as a forfeited error, subject to a review as an obvious error under N.D.R.Crim.P. 52(b).

Closures of pretrial hearings implicate the public trial right.

When the district court makes no Waller findings, there is a violation of the Sixth Amendment right to a public trial constituting obvious error.

Given our case law strictly requiring analysis of the Waller factors, we must reverse for a new trial to ensure the fairness, integrity, and public reputation of the justice system.

State v. Pulkrabek 2022 ND 128
Docket No.: 20210332
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: A juvenile court order finding two children to be in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.G. (CONFIDENTIAL) (consolidated w/20210346) 2022 ND 127
Docket No.: 20210345
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: A district court has broad discretion in admitting or excluding evidence at trial.

In deciding whether to exclude evidence under N.D.R.Ev. 403, courts should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.

Failure to assert a claim of obvious error on appeal does not warrant review under the obvious error standard.

State v. Thomas 2022 ND 126
Docket No.: 20210339
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: An issue not properly preserved for appeal is limited to whether the alleged error constitutes obvious error affecting substantial rights.

A substantial right has not been denied unless the violation significantly prejudiced the defendant.

Defendant failed to show how he was significantly prejudiced by the late disclosure or admission of a redacted video.

State v. Bradshaw 2022 ND 125
Docket No.: 20210306
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Quamme v. Quamme 2022 ND 124
Docket No.: 20220034
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Divorce - Property
Author: McEvers, Lisa K. Fair

Highlight: An appellate court’s jurisdiction generally attaches upon the filing of a notice of appeal and is not relinquished until the court issues its mandate.

An order or judgment entered by the district court without jurisdiction is void.

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 9/15/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: While this Court defers to a tribe on its membership determinations, without consistent and clear factual findings supporting the application of ICWA and North Dakota heightened review for Indian families, this Court is unable to determine the father’s issues on appeal.

The Court retains jurisdiction and remands for the juvenile court to clarify its findings on ICWA and heightened state law and to hold additional evidentiary proceedings if necessary.

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 6/8/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A disorderly conduct restraining order is reviewed for an abuse of discretion.

Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

There are limits on free speech and not all speech is constitutionally protected.

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found a defendant guilty of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court’s restitution order is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The Industrial Commission’s jurisdiction does not depend solely on the filing of an application, but instead on the jurisdictional fact of intent. The Commission has the authority and duty to investigate potential violations of its regulations, including a failure to obtain a permit or file a bond.

The Commission has regularly pursued its authority, and its findings and conclusions that an operator began construction on a treating plant prior to obtaining a permit or filing a bond in violation of N.D. Admin. Code ch. 43-02-03 are sustained by the law and by substantial and credible evidence.

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An appellant must satisfy statutory requirements for perfecting an appeal to the district court from an administrative agency decision for the court to have subject matter jurisdiction.

A petitioner for a writ of mandamus must show there is no plain, speedy, and adequate remedy and that they have a clear legal right to performance of the act sought to be compelled by the writ.

Under N.D.C.C. § 65-04-32(2), an employer is required to file a request for reconsideration of a Workforce Safety and Insurance notice of decision within the statutory time limit, and the time requirement is not extended by N.D.R.Civ.P. 6(e).

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Post-judgment motions following a judgment denying post-conviction relief will be treated as another application for post-conviction relief.

District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A proposed pre-filing order designating a person as a vexatious litigant is not appealable.

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A comment on a defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

In considering whether counsel’s failure to object to a Doyle violation establishes a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different in the postconviction relief context, the district court must consider the factors outlined in State v. Wilder, 2018 ND 93, ¶ 9, 909 N.W.2d 684. They include: (1) the use to which the prosecution puts the post arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

A witness’s isolated reference to a defendant’s invocation of his right to counsel, without further elaboration or further mention by the State at any other time during the trial or in closing arguments, does not warrant a new trial for the defendant.

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for postconviction relief and a pre-filing order under N.D. Sup. Ct. Admin. R. 58 concluding the applicant is a vexatious litigant are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: A formal, evidentiary hearing is required whenever an administrative agency acts in a quasi-judicial capacity unless the parties either agree otherwise or there is no dispute of a material fact.

A summary judgment is inappropriate if a fact-finder must draw inferences and make findings on disputed facts to support its decision.

Even when facts are undisputed, a summary judgment may not be granted if reasonable differences of opinion exist as to the inferences to be drawn from those facts.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgments entered after the defendant pleaded guilty to driving under the influence, fourth or greater offense, are summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The owner of a limited liability company generally is not liable for the company’s debts, obligations, or other liabilities.

District courts must sufficiently address each factor considered in piercing a company’s veil and explain how the factors do or do not apply.

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John